Last month Russia enacted a new law effectively banning people with certain illnesses from driving. Within the listed illnesses are those viewed as “personality and behaviour disorders”, for example transsexualism and other “disorders of sexual preference”.

The move was justified by the Russian government on the basis of a need to reduce the high rates of traffic accidents occurring each year. The country currently has some of the worst figures for road accident fatalities in the world and it is believed that stricter controls on those given the opportunity to drive will make the roads safer.

Nevertheless, the Act has received international criticism due to its potentially detrimental effects on the transgender community. Jean Freedberg, of Human Rights Campaign Global, argued that the ban is “simply another example of the Russian government’s increased campaign of persecution and discrimination against its LGBT population”. Like other critics, Freedberg fails to see the logic behind connection that the Russian government has drawn between gender identity and driver ability. As Shawn Gaylord, of US-based Human Rights First, argues, “banning people from driving based on their gender identity or expression is ridiculous”. He also expresses concerns that it could deter transgender people from seeking mental health services due to a fear of losing the right to drive.

Snapshots of law, gender and sexuality news from the past couple of weeks.

US Supreme Court (Sort of) Decides on Same Sex Marriage

Jesse Bachir, Durham University

Following last year’s decision in Windsor, same-sex couples and LGBT advocacy groups across the United States have been filing suits against State governments challenging the Constitutionality of same-sex marriage bans.

So far, almost every Court (with one exception) in the United States has found marriage bans to be unconstitutional either under Federal Constitutional law or State Constitutional law. Most recently, earlier this month, the Supreme Court denied a petition to review 7 cases from lower Federal Courts on the constitutionality of marriage bans. In denying review of the cases, the decisions of the lower courts stood (all of which found the bans unconstitutional), and the stays of execution issued by the lower courts were removed. That brings the total to 32 States with equal marriage.

The Supreme Court effectively, though indirectly, decided the issue for the rest of the country – in allowing the lower court decisions to stand, clear judicial precedent has been made. The lower courts in all 7 of the denied review cases found the marriage bans to be unconstitutional for the same reasons. In denying review, the Supreme Court implicitly agreed with the rulings of the lower courts and avoided wading into the politically charged topic.

Anna Jobe is a third year PhD student at Durham Law School. Her thesis research concerns the regulation of religious symbols.

“I do not know what the definition of ‘draconian’ is, but it certainly does not sound very good, and I am sure that it does not apply to my Bill.”

– Philip Hollobone

On the 28th February 2014, the Face Coverings (Prohibition) Bill had its second reading in the House of Commons. The debate will be resumed on May 16th. Introduced as a Private Members’ Bill, it represents Conservative MP Philip Hollobone’s second attempt to prohibit the wearing of ‘certain face coverings’ in public places (after his 2010 Face Coverings (Regulation) Bill). It forms part of a series of Tory Private Members’ Bills dubbed the ‘Alternative Queen’s Speech’, which include the return of national service and the death penalty, as well as a national ‘Margaret Thatcher’ day. By Hollobone’s own admission, despite being framed in neutral terms, the Bill is designed to target two coverings in particular: balaclavas and full-face Islamic veils (hereafter ‘veils’). In the context of increasingly punitive measures in other parts of Europe – including criminal sanctions in France and Belgium – the passing of this Bill is not quite as implausible as may first appear.

As of midnight on the 14th of March 2014, same-sex couples living in the United Kingdom who were married in a foreign jurisdiction where said marriage was recognized are now also recognized as married in the United Kingdom. This marks a general trend in Western Europe of the increasingly recognised right for same-sex couples to form legal relationships; but, unfortunately, embracing gay marriage is only a starting point for establishing full legal equality for same-sex couples. Other, related rights frequently lag behind. What lingers is institutionalised discrimination on the basis of both gender and sexual orientation, largely because the government in question “forgot” to think beyond the first rights granted. The following contribution discusses a particular area of law where these problems remain in many countries, using the United Kingdom and the Netherlands as examples: namely, pervasively heteronormative and patrilineal structure of nationality laws.

The standard mechanism for the passing of nationality to a child in most countries is via the birth (or biological) mother: the child is born with the nationality of the mother. Beyond this, additional transmission mechanisms differ per jurisdiction; some countries (such as the United States, and until recently, the Ireland and Belgium) grant nationality to all children born on national soil (as per jus soli), and others (such as the United Kingdom) grant nationality to children because their parents have lived in a given jurisdiction for a significant period of time and are thus ‘settled’ there.

Where both parents are nationals of the country they live in, the nationality of their children is straight-forward. This will be the situation that an overwhelming majority of childbirths worldwide take place in; however, determination of nationality has always been more complicated, even for heterosexual couples, when the birth mother is not a national of the country that the baby is born in. In the United Kingdom, for instance, if the (foreign) birth mother and the (British) father are not married, their child does not automatically have British nationality; the father’s paternity needs to be proven (by registering the father on the birth certificate, which the birth mother must agree to do) before nationality can be passed on. The Netherlands’ current nationality law reflects a similar principle; however, prior to 1985, Dutch nationality was only passed through patrilineal descent—consequently a Dutch mother and a foreign father could not give birth to a Dutch child, even if married before the law. Nationality law that involves binational couples has thus historically been complicated. However, the concept of what a “couple” was for the purposes of these laws was a straight-forward issue—mothers and fathers were either married or not—until the legal recognition of gay partnerships became a reality in both the Netherlands and the United Kingdom. (more…)

The direction of travel for gender equality, and particularly women’s economic equality, has been reversed in recent years. Women’s groups have predicted that ‘ground previously gained will most certainly be lost’, that ‘austerity risks turning back time’, and that there has ‘been regression in some key areas’. These backwards steps put the UK in danger of breaching its human rights obligations under international law. The effect of the economic and financial crises on women’s economic rights has been largely discussed as though women’s issues were identical to those of men. Women’s rights, therefore, are the particular focus of what follows.

The UK voluntarily accepted obligations to respect women’s rights in 1986, yet the latest reports would seem to suggest that the UK has forgotten its responsibilities in relation to women’s economic rights, or operates under the ill-founded assumption that these responsibilities are suspended by an economic recession. The ‘Women’s Convention’ – the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) – is broad in its coverage, and affords women many rights in respect of discrimination. These rights have been affected by the crises in what Oxfam has labelled ‘a perfect storm’ of ‘economic stagnation, the rising cost of living and public spending cuts’. The debate on the apportionment of blame for these three phenomenon is well-rehearsed and unresolved but, what is clear as a matter of international human rights law, is that regardless of what or who caused the crisis, the responsibility for addressing the negative impacts upon women rights rests firmly with the State (defined as ‘all branches of Government’).

I recently looked into purchasing some personal effects insurance. The more items I added, and the longer that I wanted to the policy to last, the greater the risk to the company concerned that one of these items would be lost or stolen. Thus, with each item that I added, and each month that I extended the hypothetical policy for, the more the premium increased. You see, insurance policies are based on risk – everyone knows that. Except, it seems, for the European Court of Justice.

Yesterday the ECJ made the decision to prohibit the use of gender in insurance underwriting. This is likely to have the greatest effect on car insurance, life insurance, and pension annuities, and once again, it is women who will be hit the hardest. A male driver under the age of 21 is statistically twice as likely to have an accident as a female driver of the same age. However, despite such statistical and historical evidence displaying beyond a shadow of a doubt that being male or female has an effect on the size and frequency of car insurance claims, insurers will no longer be able to use gender to determine the level of risk that a person presents. (more…)